Marasso v. State

• Decision Date: 18 April 1922
• Docket Number: 3 Div. 403.
• Parties: MARASSO v. STATE.
• Court: Alabama Court of Appeals

93 So. 226

18 Ala.App. 488

MARASSO v. STATE.

3 Div. 403.

Court of Appeals of Alabama

April 18, 1922

Rehearing Denied May 9, 1922.

Appeal from Circuit Court, Escambia County; John D. Leigh, Judge.

Albert Marasso was convicted of violating the prohibition law, and appeals. Reversed and remanded.

Stone & Stone, of Bay Minnette, and Hamilton Page, & Caffey, of Brewton, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The court was in error in charging the jury as a matter of law that the state "witness Boswell (upon whom the state relied principally for a conviction) had absolutely no interest in the conviction of the defendant." In thus charging the jury there was an invasion of its province, as it was their duty to determine this important question from the testimony, from the demeanor of the witness upon the stand, upon his manner of testifying, and from the facts and circumstances attending the trial. It is true the court undertook to qualify this statement, when exception was reserved thereto; but this attempt was abortive, and the tendency of such attempted qualification was to the effect that all of the witnesses examined upon this trial had absolutely no interest in the conviction of the defendant. The portion of the oral charge excepted to is clearly a charge upon the effect of the testimony, and therefore violative of section 5362, Code 1907, which expressly provides that the court shall not charge upon the effect of the testimony, unless required to do so by one of the parties. The bias or prejudice of witnesses are circumstances to be considered by the jury in connection with other circumstances, such as their intelligence, their manner of testifying, and their conduct on the witness stand. Underhill on Crim. Ev. (2d Ed.) 248. Nor can the court charge affirmatively that a witness has been impeached, or has not been impeached. This, also, would be an invasion of the province of the jury. Rambo v. State, 134 Ala. 71 32 So. 650; Prior v. State, 99 Ala. 196, 13 So. 681.

There appear several other infirmities in the court's oral charge, but as no exceptions were reserved thereto these questions cannot be reviewed. Montgomery v. State, 204 Ala. 389, 85 So. 785. Counsel for defendant undertook to raise these questions on his motion for a new trial, but this is not permissible. A motion for new trial is not the method to review rulings of the trial court during the progress of the trial, but not excepted to; exceptions duly made on the trial being required to secure the benefit of such rulings. The action of the court in overruling defendant's motion for a new trial is not presented in a manner authorizing a review of the ruling of the court on this question. Acts 1915, p. 722; Crawley v. State, 16 Ala. App. 545, 79 So. 804, and cases cited.

The defendant undertook to prove the bad character of state witness Boswell. The court's ruling in excluding this testimony was without error, in view of the fact that the inquiry was limited to the character...